12:04, May 06 239 0 theguardian.com

2020-05-06 12:04:03
Home Office accused of pressuring judiciary over immigration decisions

The Home Office has been accused of interfering with the independence of the judiciary after it emerged judges were asked to provide written explanations for the rise in the number of detainees released from immigration centres during the Covid pandemic.

In a letter to the president of the Tribunal, Immigration and Asylum Chamber dated 29 April 2020, the Home Office’s head of appeals, James Stevens, wrote: “The numbers of those in detention have reduced very significantly since the start of this emergency,” and went on to say “the Home Office is somewhat surprised at the level of grants of bail in recent weeks.”

Official figures record 1,225 people in detention centres on 1 January, while the latest figures record 368 – a reduction of almost three quarters.

Stevens outlined the ways in which the Home Office had responded to the risks Covid posed to detainees, before going on to ask: “Where bail is granted I would ask you to consider whether immigration judges could provide written reasons for this.” Judges are not required by law to do this.

Stevens wrote: “While I realise this is not a requirement under the procedure rules, it would assist the Home Office to fully understand the reasons why bail has been granted.”

The Home Office is supposed to detain only those it can deport imminently, but its ability to do this during the coronavirus pandemic has been drastically reduced due to flights being grounded. There have been three confirmed cases of Covid-19 among immigration detainees and the risk of catching the virus remains high among those who are locked up for extended periods.

In his response dated 1 May, Judge Michael Clements, president of the Tribunal, Immigration and Asylum Chamber, issued a robust rejection of the Home Office’s request. “As independent judiciary we decide bail applications in accordance with the law which includes the guidance which has been issued. There has been no change in either the law or the guidance.

“The primary function of detention is accordingly to facilitate removal and unless there are very powerful reasons to the contrary bail should be granted if there is no removal of the bail applicant within the reasonably foreseeable future.”

He added that during the pandemic he had instituted a “minded to grant” bail process giving the Home Office an early indication before a bail hearing took place that a judge was likely to grant bail unless the Home Office could provide specific reasons why this should not happen.

“Unfortunately the feedback that I am receiving is not only that the Home Office rarely consent to the grant of bail having seen the ‘minded to grant’ but that bail is still opposed at the hearing without any meaningful additional representations being given.”

Bella Sankey, the director of Detention Action, which launched a legal challenge calling for the mass release of detainees during the pandemic, said: “This letter is a constitutional disgrace, entirely in keeping with a government that thinks it is above the law and not answerable to our sovereign parliament.

“That the Home Office has sought to pressure the Immigration Tribunal over its bail decisions during a global pandemic shows alarming disrespect for the right to liberty, the rule of law and the separation of powers.”

Toufique Hossain, of Duncan Lewis solicitors, who brought the Detention Action case, said: “Separation of powers is a basic principle of any democratic society to safeguard liberties and guard against tyranny.”

The Home Office has not responded to a request for comment.